Analysis Law and Policy

Resistance Mounts to Regulatory War on Health-Care Benefits

Christine Grimaldi

The Trump administration's regulatory war demands vigilance because it will have “a big impact on the people who rely on the ACA the most ... [on] LGBTQ people, on young people, on women of color," said Alexis Cole with Unite for Reproductive and Gender Equity.

This is part three of Rewire’s series on the regulatory war on the Affordable Care Act. You can read the other pieces in the series that have been published so far here.

If you’ve read Rewire’s series on regulations, you know the Trump administration is plotting a war in the weeds against the ability of anyone who isn’t straight, cisgender, wealthy, and white to access quality, affordable health care.

You might not know how advocates and lawmakers are mounting their resistance—and how the general public can join their effort.

Part one explored the regulatory power of the agencies, especially the U.S. Department of Health and Human Services (HHS), to undermine the statutory essential health benefits and women’s preventive services that live in the text of the Affordable Care Act (ACA), also known as Obamacare. HHS Secretary Tom Price could go after the birth control benefit under the women’s preventive services guidelines through the federal rule-making process on his own, with other agency heads, or with an assist from the White House via a long-rumored religious imposition executive order hastening its demise.

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Part two continued with other marginalized groups in the crosshairs—transgender people, pregnant people, and people with low incomes, categories that are not mutually exclusive. They face disproportionate consequences should the Trump administration’s anti-choice, anti-LGBTQ decision-makers fail to enforce wide-ranging nondiscrimination, undermine Medicaid expansion, and destabilize health-care exchanges, all enacted under President Obama’s signature health-care reform law.

We’ve reached part three, the final installment focusing on the people preparing to fight the administration’s regulatory war. Advocates are working at the state and federal levels to install protections for the Obamacare-guaranteed benefits under fire. Democrats in both the U.S. House of Representatives and the U.S. Senate are flexing their statutory muscles for the months to come. Join Rewire to learn how they are confronting threats with resistance.

The Resistance

State Advocacy Edition

Health insurance coverage is far from a federal issue. Geography factors into the level of care you may or may not be able to access as a resident of one state versus another. Laws and regulations can sway the degree to which essential health benefits and women’s preventive services are protected and even expanded within a state’s borders.

Advocates working at the federal level to stop statutory and regulatory attacks on Obamacare are also working at the state level to soften the blow.

“One thing—especially in this administration—we can always remember is that states have power too,” Alexis Cole, policy manager for Unite for Reproductive and Gender Equity (URGE), told Rewire in an interview.

And more states than not have wielded power in making birth control accessible. As a Kaiser Family Foundation report put it, “States have historically regulated insurance, and many have mandated minimum benefits for decades. Contraceptive coverage is no exception.” That’s the case in 28 states, including four—California, Illinois, Maryland, and Vermont—at no cost to the consumer, in the same vein as Obamacare’s birth control benefit in the women’s preventive services guidelines.

Pending bills (AB 249 and SB 233) in the Nevada legislature would codify and expand the birth control benefit at the state level. The Nevada Assembly just passed AB 249 in a bipartisan 40-2 vote.

Cole had one piece of advice to preserve contraception without co-pay: “Call your state legislature.”

For advocates with the Black Women’s Health Imperative (BWHI), the state legislature is a second home.

BWHI was already committed to improving Obamacare’s women’s preventive services after the task force charged with updating the guidelines failed to recommend coverage without co-pay of 3-D mammography that can better detect cancer in the dense breast tissue common among women of color, particularly Black women. “3-D technology greatly enhances Black women’s chances for early diagnosis,” BWHI President and CEO Linda Goler Blount said in a 2015 press release, more than a year before the task force would again discount coverage from newly revised guidelines in December 2016.

And so BWHI turned to the states. The group helped convince New York Gov. Andrew Cuomo (D) and his administration in February to take regulatory action requiring insurers in the state to cover the far more expensive technology.

As BWHI’s Christy Gamble travels the country to make the case for more inclusive women’s preventive services, she’s seeing some state policymakers try to replicate the policies ahead of potential congressional and federal agency intervention.

“I know in New York right now, they’re doing whatever they can to codify a lot of the ACA provisions into law. And the governor is doing what he can to put in place regulations, such as having access to contraception, all 18 [U.S. Food and Drug Administration-approved methods] at no cost,” Gamble, the organization’s director of health policy and legislative affairs, told Rewire in a phone interview.

A new governor, just like this new president and administration, could of course gut prior regulations enforcing the state law. And shifting majorities in state legislatures could try to change statutory fail-safes for essential health benefits and contraception, as congressional Republicans on the national stage have tried, and failed, to do overall with Obamacare repeal. Reproductive rights advocates have seen the consequences of surrendering federal protections, such as those for Title X family planning funding, to the states.

Rewire’s Jessica Mason Pieklo has explained how the “let states decide” lie creates a patchwork of rights for issues like abortion care access.

The latest House GOP “compromise” allows states to waive the essential health benefits. But it’s far from a done deal, especially after Republicans exempted their health insurance from the proposal—keeping the requirements, including the popular benefits, for themselves.

“We need to call our legislators and tell them how important the essential benefits are, and demand their continued resistance against Trump and Price’s callous cruelty,” All* Above All Co-Director Destiny Lopez said in an email. “Finally, we also have seen the cavalier way this administration operates, so the full checks and balances of our government will be vital in protecting Obamacare—which remains the law of the land.”

Federal Advocacy Edition

Price’s HHS isn’t the only agency of health-care destruction. Should the Senate confirm Trump nominee Dr. Scott Gottlieb to head the U.S. Food and Drug Administration (FDA), the agency stands poised to fear monger on the birth control benefit and could wreak damage on another area under its purview: diversity in clinical trials.

The New York Times in December reported the hurdles people of color face in cancer trials. The Obama administration’s FDA commissioner responded by speaking openly of “challenge” and “progress” in a letter to the editor three days before Trump’s inauguration. As the presumptive new commissioner, will Gottlieb account for age, gender, race, and ethnicity in clinical trials, per updated Obama-era guidance that the then-commissioner referenced?

Not if he continues his record on the issue, according to the National Women’s Health Network. The advocacy group warned that Gottlieb “wants to speed up the FDA—even if it means clinical trials don’t represent women and people of color.”

The consequences could be dire, according to the BWHI’s Gamble.

“By not including a significant population of people of color into clinical trials, we’re now creating drugs and therapies that are not beneficial when it comes to people of color and their genetic makeup,” she said.

Gottlieb and fellow agency heads theoretically cannot act in a vacuum. Any regulatory changes are supposed to follow an oftentimes protracted rule-making process, per a federal law called the Administrative Procedures Act. And even though part one of Rewire’s regulatory series explored how the administration could sidestep the process, it’s still an important vehicle for advocacy groups and the public to speak up.

“When comments are open, you can go online and very easily submit your thoughts,” URGE’s Cole said. “And the agencies have to review them and consider them, especially when they get a lot at once on the same topic.”

All people have to do is turn to the Federal Register, the self-described “daily journal of the United States government” that publishes every proposed rule. Submitting a comment is as easy as clicking the link at the top of each proposed rule.

Janel George, director of federal reproductive rights and health for the National Women’s Law Center (NWLC), provided tips on how to monitor potential regulatory changes. She pointed to the website for the Health Resources and Services Administration, the arm of HHS charged with the women’s preventive services guidelines, and the webpage for the guidelines.

“Unfortunately, given the lack of transparency, that’s what we’ve been doing is just trying to stay abreast of any changes,” George said.

HHS also launched a webpage, “Providing Relief Right Now for Patients,” highlighting actions to dismantle Obamacare.

“We are going through every page of regulations and guidance related to the Affordable Care Act to determine whether or not they work for patients and whether or not they are making our health care system better,” the webpage reads.

Religious imposition hires at HHS and other agencies are poised to wield the rule-making process against Obamacare. Some members of temporary “beachhead” teams have secured permanent employment in the administration; more are expected to follow.

NWLC is “cognizant of the fact that they are working on this,” Mara Gandal-Powers, senior counsel for health and reproductive rights at NWLC, said in an interview.

Gandal-Powers warned that the same forces who helped secure victory for the plaintiffs in Hobby Lobby v. Burwell and Zubik v. Burwell, two successful U.S. Supreme Court challenges to the birth control benefit, are now advising Price and Trump.

“That’s who has their ear,” she said. “I think that they are fundamentally wrong on much of it, but they are smart people who are figuring out a way to do this.”

Capitol Hill Edition

Congressional Democrats in both chambers are figuring out a way to stop them.

Eleven Senate Democrats and one Independent scrutinized HHS Office of Civil Rights chief Roger Severino, the anti-LGBTQ activist who doesn’t believe federal nondiscrimination required under Section 1557 of Obamacare should apply to transgender people.

Sen. Patty Murray (WA), the top Democrat on the Senate Health, Education, Labor, and Pensions Committee, was among the lawmakers who demanded answers from Price by April 21 on how Severino’s “long history of making bigoted statements toward lesbian, gay, bisexual, and transgender people” makes him qualified to lead an office intended to safeguard diversity and inclusion.

Murray and her colleagues “will make sure any attempts to undermine our health-care system in the shadows at the Department of Health and Human Services will be brought to light,” she told Rewire in an emailed statement. “Senate Democrats expressed a variety of concerns at Secretary Price’s nomination hearing about his harmful views and record on women’s health and rights, and we will continue to monitor closely and hold him accountable if he tries to undermine women’s reproductive rights or health care for millions of people as secretary of Health and Human Services.”

More immediate legislative battles are demanding Democrats’ attention. Murray raised House Republicans’ push to “defund” Planned Parenthood in their failed Obamacare repeal bill may not be over.

“While some Republicans have said they will not try to defund Planned Parenthood in the upcoming budget negotiations, past behavior gives me no reason to trust their word,” she said.   

“As a longtime advocate for women’s health and reproductive rights, I have seen Republicans play politics with Planned Parenthood funding, without regard for the millions of women who receive preventative and reproductive care at their centers across the country. We need to stay vigilant and keep fighting against the extreme anti-woman policies we’re seeing from Republicans.”

Across the Capitol, House Democrats are preparing to defend the budget against attacks on access to reproductive health care.

“Democrats will fight tooth and nail efforts to undermine reproductive health care through the appropriations process,” Rep. Nita Lowey (D-NY), ranking member on the House Appropriations Committee, told Rewire.

Lowey reliably opposes GOP-led efforts to wield the appropriations process against Title X family planning funding. She challenged Trump’s “global gag rule” expansion days after his inauguration.

We “will exercise, identify, and fight provisions that seek to undermine health standards that women and all Americans deserve,” she said.

People with low incomes and people of color stand to lose the most under such GOP health-care proposals. Rep. Robin Kelly (D-IL), chair of the Congressional Black Caucus Health Braintrust and co-chair of the Congressional Caucus on Black Women and Girls, refuses to let them disproportionately shoulder that burden.

Kelly recently testified before a House Appropriations Committee panel “on the importance of health investment in all American communities, but especially communities of color.”

“The front line of this fight is not with the White House, it’s in Congress,” Kelly said in an email. “As the Appropriations Committee crafts its 12 bills, the American people must hold them accountable for what they invest in and what they ignore.”

Cole urged constituents to keep calling their members of Congress, even on regulatory matters.

“These attempts to undermine and to ruin the ACA are going to be a little bit more wonky and possibly more complex,” she said. But the regulatory war demands vigilance because it will have “a big impact on the people who rely on the ACA the most …[on] LGBTQ people, on young people, on women of color.”

“These are the people who are going to be most deeply affected by these changes.”

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